NLRB Finds Employer Non-disparagement Clause Violated the NLRA
November 19, 2019
The National Labor Relations Board (NLRB) has issued a decision regarding the lawfulness of an employer's non-disparagement clause and the lawsuits the employer filed against employees who anonymously posted negative comments on websites. The NLRB held that the employer's non-disparagement provision violated the National Labor Relations Act (NLRA) because its requirement that employees not "criticize, ridicule, [or] disparage" the employer restricted NLRA-protected activity. The rule was not limited to criticism of other employees or the employer's products and services, which would not have the same impact on NLRA-protected activity. Further, the employer’s asserted interest in maintaining the rule—that it relies on its online reputation to advertise for clients and that negative reviews could hurt its business prospects—is not a unique interest nor is it strong enough to outweigh the significant interference the rule has with employee rights. The NLRB also found that anonymous postings on websites, including Glassdoor.com, did not amount to protected concerted activity and thus lawsuits that the employer filed against the posters were not filed in retaliation against protected activity.